Jaguar Land Rover Limited v. THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp
Claim Number: FA2103001935181
Complainant is Jaguar Land Rover Limited (“Complainant”), represented by Jennifer M. Hetu of Honigman Miller Schwartz and Cohn LLP, Michigan, USA. Respondent is THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <jaguararrowhead.com>, <landroverarrowhead.com>, and <jaguarlandroverarrowhead.com> registered with Network Solutions, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 2, 2021; the Forum received payment on March 2, 2021.
On March 5, 2021, Network Solutions, LLC confirmed by e-mail to the Forum that the <jaguararrowhead.com>, <landroverarrowhead.com>, and <jaguarlandroverarrowhead.com> domain names are registered with Network Solutions, LLC and that Respondent is the current registrant of the names. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@jaguararrowhead.com, postmaster@landroverarrowhead.com, postmaster@jaguarlandroverarrowhead.com. Also on March 10, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 2, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant is a well-known UK-based manufacturer of high-end luxury vehicles, which are sold in the United States and in more than 100 countries around the world. Complainant has rights in the JAGUAR and LAND ROVER marks through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,693,573, registered March 4, 2003 and Reg. No. 541,722, May 1, 1951). The disputed domain names are confusingly similar to Complainant’s marks as they incorporate one or both of Complainant’s marks in their entirety and merely adds the geographic term “arrowhead” and the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names. Additionally, Respondent does not use the disputed domain names in connection with a bona fide offering of goods or services or legitimate non-commercial or fair use as Respondent uses the disputed domain names to divert traffic away from Complainant’s website and to Respondent’s website where it hosts competing pay-per-click hyperlinks.
iii) Respondent registered and uses the disputed domain names in bad faith. Respondent uses the disputed domain names to divert traffic from Complainant for commercial gain. Alternatively, Complainant argues if the resolving webpages for the disputed domain names are considered inactive, that further indicates bad faith. Additionally, Respondent registered the disputed domain names with constructive and/or actual knowledge of Complainant’s rights in the JAGUAR and LAND ROVER marks.
B. Respondent
Respondent did not submit a response.
1. The <jaguararrowhead.com>, <landroverarrowhead.com>, and <jaguarlandroverarrowhead.com> domain names were registered on September 28, 2017.
2. Complainant has established rights in the JAGUAR and LAND ROVER marks through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,693,573, registered March 4, 2003 and Reg. No. 541,722, May 1, 1951).
3. The resolving websites for the disputed domain names feature various hyperlinks that directly compete with Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the JAGUAR and LAND ROVER marks through Complainant’s registration of the marks with the USPTO (e.g., Reg. No. 2,693,573, registered March 4, 2003 and Reg. No. 541,722, May 1, 1951). Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel finds Complainant has demonstrated rights in the JAGUAR and LAND ROVER marks per Policy ¶ 4(a)(i).
Complainant argues that the disputed domain names are confusingly similar to Complainant’s marks as they incorporate either the JAGUAR and/or LAND ROVER mark in its entirety and merely add the geographic term “arrowhead,” as well as the “.com” gTLD. The addition of a geographic term and a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”). Complainant contends that the term “arrowhead” refers to the Arrowhead area of Glendale, Arizona. Therefore, the Panel finds the disputed domain names are confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain names and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends Respondent lacks rights or legitimate interests in the disputed domain names as Respondent is not commonly known by the disputed domain names. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). The WHOIS information for the disputed domain names provided by the registrar lists the registrant as “THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain names to host hyperlinks that connect Internet users with the products of competing car manufacturers. The use of a disputed domain name to host competing hyperlinks does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). Alternatively, Complainant argues that if the resolving websites for the disputed domain names are deemed inactive they still would not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. Failure to make active use of a disputed domain name is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides screenshots showing the disputed domain names resolve to parked webpages that host pay-per-click hyperlinks for competing services and websites of competing car manufacturers. Therefore, the Panel finds Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant argues Respondent registered and uses the disputed domain names in bad faith as Respondent uses the disputed domain names to divert Internet traffic for commercial gain by hosting pay-per-click hyperlinks that divert Internet users to the Complainant’s competitors. Using a confusingly similar domain name to divert traffic and host competing pay-per-click hyperlinks is considered evidence of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”). The Panel recalls that Complainant provides screenshots showing the resolving websites for the disputed domain names feature various hyperlinks that directly compete with Complainant and which Complainant contends Respondent must receive a financial benefit from. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <jaguararrowhead.com>, <landroverarrowhead.com>, and <jaguarlandroverarrowhead.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: April 9, 2021
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